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This Week at the SCC (26/04/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Hovsep Afarian

The Supreme Court of Canada heard arguments in one case of interest to Canadian businesses. In Vivendi Canada Inc. c. Michel Dell’Aniello, the Supreme Court of Canada is revisiting the issue of what constitutes a “common issue” in the context of a class proceeding.

The Supreme Court of Canada also denied leave to appeal in a host of cases of interest to Canadian businesses.

In Italo Tony Montaldi v. Enbridge Gas Distribution Inc., the Court refused leave to appeal a decision of the Ontario Court of Appeal involving the nature of the knowledge necessary to establish a cause of action for knowing assistance of a breach of a fiduciary duty. In a related proceeding, the Court declined leave to appeal to address the appropriate test for determining whether employees are a fiduciary of their employer: Angelo Piro v. Enbridge Gas Distribution Inc.

The Court also declined leave in two related appeals addressing: (i) whether Ontario’s Consumer Protection Act can be applied retroactively; (ii) whether the implied conditions and warranties in the Sale of Goods Act applies to leased goods; and (iii) whether a breach of the implied warranty of witness can ground liability for consequential damages: Reliance Home Comfort Limited Partnership also known as Reliance Home Comfort v. Shirley Szilvasy and Reliance Home Comfort Limited Partnership also known as Reliance Home Comfort v. Geoffrey Collett et al.

In Morguard Corporation v. Her Majesty the Queen, the Court declined leave in an interesting tax case concerning the proper characterization of a “break fee” received by the applicant in relation to its unsuccessful takeover bid of a public company.

In Agence du Revenu du Québec c. Jacques Pellan, the Court denied leave to hear an appeal from the Quebec Court of Appeal addressing whether a class action contesting the validity of income taxes was improperly commenced, as the taxes should have been challenged via the notice of objection procedure set out in the Taxation Act.

In Georges Marciano et al. v. Joseph Fahs et al., the Court denied leave to appeal a decision of the Quebec Court of Appeal enforcing a foreign bankruptcy judgment. The applicants asserted that the public policy exception to enforcement was engaged and that the decision was not a final one.

In Sahara Spa Inc. et al. v. C & S Construction Co. Ltd., the Court declined to hear an appeal from the Saskatchewan Court of Appeal involving the application of an exception to the doctrine of contractual privity.

In Nouredine Philip Fakhri c. Seaport Group LLC, the Court refused leave from a decision of the Quebec Court of Appeal declining to assume jurisdiction in a dispute involving the sale of land and shares which contained an express choice of forum clause in favour of Quebec courts.

In another case emanating from the Quebec courts, Margit S. Léger, 9120-8207 Québec Inc. v. Garage Technology Ventures Canada, LP et al, the Court declined leave to appeal in a case grappling with the question of whether the test for the oppression remedy should be modified when the corporation is a “start-up”.

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions.  The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.